Review of “The EU, World Trade Law and the Right to Food: Rethinking Free Trade Agreements with Developing Countries”

Giovanni Gruni, The EU, World Trade Law and the right to Food: Rethinking Free Trade Agreements with Developing Countries. Studies in International Trade and Investment Law series. Oxford: Hart Publishing, 2018. ISBN 9781509916207.

Ana Peres

International trade law does not aim only at promoting liberalisation and market access, and Giovanni Gruni book points out the importance of considering food security aspects when negotiating free trade agreements (FTAs). The comprehensive analysis finds its place among the body of work aiming at creating and spreading knowledge to bridge the gap between human rights and international trade law. The author impressive understanding of both areas of law offers a thoughtful and complete assessment of the rules negotiated by the EU in its FTAs with vulnerable countries, demonstrating, first, how the EU has the adequate tools to promote the right to food on the international trade scenario, and, second, how it fails to do so. The work adds, thus, to the debate over bringing international trade talks closer to non-economic issues, stressing the relationship between trade and development. In this regard, trade and human rights are compatible, and major trade powers should pursue a common ground when dealing with those topics.

Given the impossibility of going into the details of the research, we will briefly overview the main arguments of the book, to offer the readers an overall understanding of the central thesis, whilst also presenting a critical analysis of some of its points. Our reservations lie on the difficulty to integrate human rights to trade talks in the WTO and on the importance to include developing countries in the negotiations, both on the multilateral and plurilateral levels.

Dr. Gruni’s core claim is the shifting of the EU negotiating position, going from influencing international trade law mainly through the World Trade Organization (WTO) to attempting to create ‘its own trade network’ (1). In this context, the book focuses on the FTAs concluded between the EU and countries vulnerable to food shortage, addressing their flaws

The outcomes show that FTAs between the EU and developing countries result in voluntary legal constraints on the ability of the latter to realise the right to food. Such constraints are voluntary in the sense that they do not come from legal obligations undertaken under the WTO regulatory framework. The EU would be able to promote a trade reform to incorporate the right to adequate food in FTAs. Gruni supports that the EU should adopt policy instruments capable of addressing the multiple implications of trade in food during negotiations of FTAs with vulnerable countries. Such mechanisms would be indispensable for correcting the imbalance of power between the parties, which do not enjoy the same level of influence in the negotiations. From this study, Gruni develops an analytical model that is later applied to case studies, assessing to what extent the EU considered the right to food in the negotiation process of the FTAs it has concluded with the Caribbean and sub-Saharan Africa countries.

When dealing with the difficulty of including human rights in trade negotiations, Gruni mentions some hurdles such as the ‘excessively burden[ing] and already complex process’ of reaching a trade agreement, ‘the reliance on comparative advantage as a justification of world trade law and the risk that human rights might highjack the policy to liberalise trade, leading to protectionism’ (36). The book could benefit from a critical approach to understand the role of developed countries in keeping those two areas apart. Both the GATT system and later the WTO are the outcomes of negotiations dominated by the richest countries, which were able to advance their economic agenda and impose their interests and standards.[1] In this regard, we may question whether maintaining multilateral trade as a specialised and isolated area of international law is a natural process or the decision of a few influent players. The Doha Round and the participation of the G20 in the WTO are examples of developing countries attempts to direct negotiations towards trade-related issues, especially concerning development matters. The WTO is a member-driven organisation so it reflects the interests of those making the decisions. Previously, they were just developed Members but since Doha developing countries are also enjoying greater participation, shifting the traditional balance and agenda of trade talks.[2]

The aim of ‘reducing the intervention of the state in the economy’ (36-37) may also be questionable and is no longer frequently raised, as the idea of liberalisation through regulation arises as a more appropriate doctrine to achieve the broad goals set on the Marrakesh Agreement constituting the WTO. States do still play an important role in ensuring market access and trade liberalisation.

The international food market has been increasing its role in the realisation of the right to food. However, as the author remarks, such a contribution will only be of a positive nature if the international market improves the conditions of vulnerable players. As this market has forces of its own, it takes out some of the government control over the availability and accessibility of the commodities. The loss of such a power over determining the quantity and price of food is particularly dangerous for developing countries, as their space for adopting public policies is reduced and their resources to achieve the right to food is further limited. To counterbalance the negative effects of the international food market on domestic food security, countries may adopt protectionist policies concerning their import and export of food products. Those measures, however, must not impair third countries’ access to food nor economic integration.

The author further identifies three main threats to the realisation of the right to food – price volatility; negative incentives to domestic food production; and concentration of market power. Addressing each one in depth, Gruni presents their characteristics and impact on the achievement of such right, relating them to the broader context of the international food market. The relation between international trade and food security is, thus, reaffirmed. The existing asymmetry among countries is particularly stressed, as it gives to some players the power and instruments to dominate that market.

Concerning some of the most popular solutions to answer the problem, the book adopts a critical approach when dealing with development aid, discussing its limits and shortcomings to achieve efficient outcomes and wealth distribution. The author proposes the adoption of a more comprehensive analysis based on the notion of global governance, to fully reach the benefits development aid may bring. As it seems the book aims at highlighting the struggles in realising the right to food rather than offering solutions, such alternative is not developed into a concrete model that could channel development aid towards the needed areas. Likewise, relying on domestic policies may present some obstacles, for it demands public resources that are not necessarily available, especially to the poorest countries. Consequently, these countries have limited ability to intervening in food trade to protect the domestic market.

After identifying the main problem at issue and placing it under the international trade law light, Gruni moves on to analyse the central role the EU plays in the right to food due to its trade leverage and know-how on trade and food security. The book presents a thorough overview of the EU structure and instruments to negotiate trade agreements and to deal with food security. The discussed features would mean that the EU is in a good position to advance the right to food in the international trade scenario, promoting development concerns, without impairing international trade law and economic integration. On the other hand, the author reminds us that developing countries do not enjoy the same tools to influence a trade agreement outside multilateral negotiations. Therefore, the EU should take the initiative of advancing the right to food in plurilateral trade negotiations.

The examination also comprises the right to food in the WTO scope. WTO obligations impact the content of FTAs, especially when it comes to eliminating tariffs. Such liberalisation may be harmful to vulnerable countries entering a preferential trade agreement, as the requirement does not take into account the different levels of development between the countries. Considering both the EU and the WTO rules and functioning is necessary to understand the last part of the book, where the author develops a case study concerning treaties agreed between the EU and developing countries.

The agreements chosen for the case study section were the EU–CARIFORUM Economic Partnership Agreement and six free trade agreements concluded between the EU and sub-Saharan countries. The EU-Caribbean trade agreement was the first of a broader initiative by the EU aiming at establishing trade agreements with all developing countries, replacing most of the WTO obligations with regards to the trade relations among the interested states. The EU-Africa trade agreements, on their turn, are the first step towards concluding five comprehensive FTAs related to different zones in the sub-Saharan region, which comprises several least-developed countries.

Gruni bases his decision on choosing the agreements largely on the profile of the trade partners, according to their level of development and the tendency to food shortage and their lack of influence on the international price of food. The EU justification underlying both agreements was the same, to support the development of and promote human rights in the related region, recognising its vulnerability. The book conducts a detailed exam of each agreement and its goals, challenges, and impact on the countries involved, with special attention to the realisation of the right to food of the vulnerable parties. In practice, those agreements impose a greater limit to the capacity of vulnerable countries to realise their right to food, exposing them to the volatility of the global food market.

By examining the rules of the agreements, the author draws the similarity between them, stressing ‘the EU strategy to reach uniform agreements with developing countries on the basis of a text prepared by the EU Commission’ (159). Gruni concludes the analysis by stating that the EU fell short both in achieving its human rights obligations and meeting the current multilateral efforts to include development concerns on international trade negotiations.

On a final remark, we may add that, notwithstanding the EU has an important role to play in promoting the right to food, given its prominence on international trade, its leadership may not solve the problem but offer solely a provisory response to it. Analysing the matter under a critical may suggest that vulnerable countries should have a saying on international negotiations, owning their own discourse and adopting an active participation in the seeking for development alternatives. After all, as the book rightly stresses, one of the main issues with the analysed FTAs is that they are based on a blueprint developed by the EU Commission without considering the perspective of vulnerable countries, discouraging their participation in the negotiations. The question remains, thus, on how to conciliate the EU leadership with the need to include the voice of those suffering from food shortage, taking into account their vulnerabilities, in the search for sustainable and long-lasting solutions aiming at the realisation of the right to food.

The author

Ana is a PhD candidate at King’s College London, Dickson Poon School of Law, and has been awarded the CAPES scholarship. Email: ana.soares_peres@kcl.ac.uk

[1] Ernest H Preeg, ‘The Uruguay Round Negotiations and the Creation of the WTO’ in Amrita Narlikar, MJ Daunton and Robert M Stern (eds), The Oxford handbook on the World Trade Organization (OUP 2012) 124–125.

[3] Appellate Body Report, US – Gambling, WT/DS285/AB/R, circulated on 7 April 2005, 17. See also Federico Ortino, ‘Treaty Interpretation and the WTO Appellate Body Report in US – Gambling: A Critique’ (2006) 9 Journal of International Economic Law 117.

[4] TWAIL, Third World Approach to International Law, as the name suggests, is a critical approach to understand international law, arguing that the latter is a construction of Western countries, reproducing the subordination of the Third World to the domination of European countries and the United States. TWAIL seeks, thus, to propose an alternative normative for international law, aiming at reaching the development of the Third World through positive action. See, for example, Makau Mutua, ‘What Is TWAIL’ (2000) 94 Am. Soc’y Int’l L. Proc. 31.